FCC Gets Earful on New Net Reg Plan

Reaction continued to pour in on Feb. 19 after the FCC signaled the re-launch of network neutrality rules under new legal management.

The National Cable & Telecommunications Association applauded the effort to try and restore the rules under Sec. 706 authority to deploy broadband, but clearly suggested the Title II option should stay on the shelf. FCC Chairman Tom Wheeler said that option would remain in play just in case, a big stick his predecessor, Julius Genachowski, also declined to drop.

"We appreciate Chairman Wheeler laying out the process for developing a new open Internet framework," said NCTA President and former FCC Chairman Michael Powell. "The cable industry has always embraced the principles of an open Internet and remain committed to them. We look forward to working with Chairman Wheeler and the Commission on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience. We continue to believe that the values of an open Internet can be preserved, while avoiding a damaging move to heavier regulation."

Comcast, NCTA's largest member, remains subject to the FCC's previous anti-blocking and nondiscrimination rules per its NBCU deal condition, a point Comcast executive VP David Cohen made in responding to the FCC announcement.

"Comcast supported the Commission's Open Internet Order as an appropriate balance of protection of consumer and business interests and we agreed in the NBCUniversal Transaction Order to abide by the Open Internet rules for seven years even if the rules were modified by the courts," Cohen said. "With the direction announced today, FCC Chairman Wheeler has taken a thoughtful approach which creates a path for enforceable rules based on the appropriate authority outlined by the Court's findings."

Comcast was among the stakeholders at the table when the 2009 compromise Open Internet order was adopted, but for cable operators, the compromise was essentially an effort to avoid Title II, rather than an endorsement of the need for such rules.

"We continue to be committed to work with Chairman Wheeler and the Commission to play a constructive role going forward that will continue to allow the Internet to flourish," said Cohen.

Wheeler Wednesday called on all ISPs to hold to their pledges of an open Internet while the new rules were being crafted.

Wheeler's effort drew praise from Sen. Ed Markey (D-Mass.), who was among a group of Democrats who called for swift FCC action after the court struck down the heart of the rules, introducing legislation to make sure the FCC had the authority to do so.

"Chairman Wheeler is taking an important step to protect what has become the world's greatest platform for innovation, job-creation and economic growth: the Internet," said Markey. "I am pleased to see the Chairman moving forward to reinstate rules on strong legal footing that preserve the open nature of the Internet. I look forward to working with the FCC to ensure the Commission moves quickly to re-adopt no-blocking and nondiscriminatory rules and ensure the Internet remains a level playing field for consumers and innovators."

Rep. Anna Eshoo (D-Calif.), who co-authored net neutrality legislation in the House, was supportive of the FCC effort. The FCC is much more likely to get action than a bill in a partisan Congress anyway. Eshoo had already conceded her bill would not pass.

"Using the FCC's clear authority, as recognized by the D.C. Circuit Court, today Chairman Wheeler has proposed a series of actions that put consumers back in the driver's seat when it comes to their online experience," said Eshoo. The proposed FCC actions would enhance transparency for consumers so they know if and when their Internet service provider is slowing down or blocking online content, and include a commitment to restore the protections of the no-blocking and non-discrimination rules. Furthermore, the proposal aims to enhance broadband competition by reducing barriers to municipality-built broadband networks.

Rep. Doris Matsui (D-Calif.), a cosponsor of the House bill, said she was pleased by Wheeler's move. "It is critical that all Americans have access to a free and open Internet, free from content blocking and other discriminatory practices," she said. "These basic rules of the road are necessary to protect both consumers and innovators."

House Republicans were not happy.

"No matter how many times the court says 'no,' the Obama administration refuses to abandon its furious pursuit of these harmful policies to put government in charge of the web," said Reps. Fred Upton (R-Mich.) and Greg Walden (R-Ore.), chairman of the Energy & Commerce Committee and Communications Subcommittee, respectively. "These regulations are a solution in search of a problem, and with the many issues on its plate, including implementation of the spectrum incentive auctions, it would be wise for the commission to focus on fostering economic growth, job creation, and competition. We urge Chairman Wheeler, if he insists on moving forward, to pursue an open and transparent process, consistent with the recommendations of the Commission's report on FCC Process Reform, as these regulations move forward."

AT&T, like Comcast, supported the initial Open Internet order, and renewed its pledge to adhere to openness principles going forward, court decision or no.

"As the FCC embarks on a new proceeding to clarify its authority under section 706, we will, of course, participate constructively and in the same spirit with which we worked with the Commission on its original rule," said AT&T senior executive VP Jim Cicconi. "We believe the FCC possesses sufficient authority under section 706 to preserve Internet freedom and openness, and that it can do so without over-regulation. Indeed, and as the court recognized, section 706 was clearly intended by Congress as a tool to enhance broadband investment and deployment. Thus, it is vital that, as the FCC defines its authority, it do so in a way that does not inhibit the very investment section 706 was intended to assist."

Public Knowledge, whose former head is now a top Wheeler aide, said it was skeptical that the 706 route would bear fruit. "We are pleased that the FCC plans to protect Internet openness, promote transparency, encourage municipal broadband, and achieve other goals, said PK President Gene Kimmelman. "While skeptical that the FCC's initial focus on section 706 will yield meaningful results, we are encouraged to see that the FCC plans to keep its 'reclassification' [Title II] proceeding open."

Wheeler also announced an inquiry into whether the FCC should remove barriers to municipal broadband, something Public Knowledge is all for. "We commend the FCC for launching an effort to promote municipal broadband and other forms of broadband competition." said Kimmelman. "Laws passed at the urging of industry lobbyists limit vital broadband services and competitive entry in 20 states. Cities and towns should be free to build systems, and offer citizens more choices and lower prices."

"Chairman Wheeler's announcement talks about the need to restore our legal protections and ensure we can communicate freely online. But pretending the FCC has authority won't actually help Internet users when websites are being blocked or services are being slowed down," said Free Press President Craig Aaron. "If the Internet is to continue to thrive, we need decisive action and clear protections under the law."

For Free Press, that means classifying ISPs under Title II common carrier regs that require mandatory access.

"The FCC can't protect free speech and prevent discrimination under the so-called Section 706 authority discussed in today's announcement," said Aaron. "Last month's court decision made that crystal clear. Section 706 doesn't work for Net Neutrality or any of the FCC's stated policy goals. If the agency really wants to stop censorship, discrimination and website blocking, it must reclassify broadband as a telecommunications service under Title II of the Communications Act."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.